The Ticking Roe Clock
Stare decisis is not mandated by the Constitution. It is, according to Justice Frankfurter, "a principle of policy." Not many people think, however, that precedent should play no role in constitutional adjudication. Robert Bork concedes in The Tempting of America that at some point a previous, incorrect decision may "have become so embeeded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed."
Bork thought in 1990 that it was too late to overrule the decisions validating the New Deal and congressional powers over commerce, taxation, and spending. Overturning those decisions would "overturn most of modern government and plunge us into chaos." Courts should avoid extending the powers of the federal government and may refuse, as the court did in Lopez and Morrison, to continue on its present trajectory. But the past decisions should stand.
Roe, however, in 1990 was still worthy of being overruled.
The question becomes whether it should still, even for originalists, be overruled. Bork thought (I assume he still thinks) that cases like Lochner and Roe never fall into this stare decisis trap. He distinguishes them from the more structural precedents associated with the New Deal based on their lack of "great disruption of institutional arrangements." Since the overall structure would remain in place, and the institutional result would just be a mad dash to the legislature, overruling these decisions comes at no great cost.
I wonder, though, whether the 30 year life of a constitutional principle doesn't at least offer some justification for not overruling the decision. Roe has, of course, been hotly contested for its entire life, and there is still a sizable portion of the body politic that wants its head. But at least some right to abortion is fairly ingrained in society. (Note: Lawrence is a completely different story, should be overturned tomorrow)
Consider the extension of the equal protection clause to gender equality. It seems, to me, far too late to overturn every gender discrimination case and retry them on Due Process grounds. It's equally too late to overturn Bolling v. Sharpe and the warping of the Due Process Clause of the Fourteenth Amendment. These seem, to me, indistinguishable from Roe.
What I'm searching for is a neutral principle for the application of stare decisis that overturns Roe but not the gender equality and incorporation cases. I know that T. More has an answer. . . . We're waiting . . .
UPDATE: Get a Stare decisis is fo' suckas t-shirt. (ht: Mike)
UPDATE II: By the way, an excellent article I should have initially noted is Henry Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum L. Rev. 723.
He poses the problem well:
"Because a coherent rationale for the intermittent invocation of stare decisis has not been forthcoming, the impression is created that the doctrine is invoked only as a mask hiding other considerations. As a result, stare decisis seemingly operates as a lightning bolt: on occasion it may strike, but when and where can be known only after the fact. A satisfactory theory of constitutional adjudication requires more than that."His justification for Stare Decisis:
"[S]tare decisis operates to promote system-wide stability and continuity by ensuring survival of governmental norms that have achieved unsurpassed importance in American society.